New York State Supreme Court, Appellate Division, Fourth Judicial Department
Court of Claims
Late notice of claim – Meritorious action
Appealed from Court of Claims
Background: The claimant appealed from the dismissal of his claim and denying his request seeking leave to file a late claim. The claimant was incarcerated and slashed in the face by another inmate. Although he filed a claim with the Court of Claims within 90 days of the incident, he did not serve the Attorney General until 109 days after the claim accrued.
Ruling: The Appellate Division affirmed. The court held that because the state is not an insurer of an inmate’s safety, it will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent a reasonably foreseeable risk. No facts were asserted in the claim that alleged the state’s employees failed to protect the claimant. The claim merely contains general and conclusory allegations of negligence.
Jason Levine, of Goldstein & Handwerker, for the claimant-appellant; Alexandria Twinem, of the NYS Office of the Attorney General, for the defendant-respondent.